Stagliano Jury Chosen—UPDATED

WASHINGTON, D.C.—Time may fly when you're having fun, but the 40 minutes the audience at the John Stagliano obscenity trial waited from the time court was supposed to begin (2:30 p.m.) until it actually began (3:10) seemed a lot longer.

But by 5:00, the jury that will decide the fate of adult movie producer John Stagliano had been selected. Out of a panel of 46 potential jurors—it would have been 47, but apparently, one of the jurors never made it back from lunch—five men and seven women, ranging in age from about 30 to 55 years old, were chosen. The panel includes one white man and one white woman; the rest are African American.

But that was simply the capper on the day. Somewhat less interesting but still notable was Judge Richard J. Leon's scolding, before the potential jurors entered the courtroom, of Justice Department attorney Matt Buzzelli for sitting at counsel table after he'd formally turned the government's representation in the case over to Pamela Stever Satterfield several weeks ago. The judge demanded to know whether Buzzelli was now back on the case for the entire trial, or what? Buzzelli replied that he was only going to be present for the end of jury selection, so the judge ordered him to sit behind "the bar," in the audience—there joining about 25 legal interns and law clerks, a couple of reporters, actress Aurora Snow, director Joey Silvera (whose Storm Squirters 2 was one of the movies charged in the case as obscene), visiting First Amendment attorney J.D. Obenberger... and of course, Stagliano's wife, now six months pregnant with her and defendant John's second child. (Earlier in the day, Jay Sin, director of the other charged movie, Milk Nymphos, had been in the courthouse, but when informed that the courtroom wouldn't be opened to the public until later that afternoon, went back to his hotel to finish editing his latest feature, never to return.)

As the afternoon court session opened, Judge Leon had each attorney introduce him- or herself, and AVN readers might not be aware that somewhere in the course of the proceedings, representation of the various defendants had been changed. Allan Gelbard, who had originally represented John Stagliano personally, now represents Evil Angel Productions, Inc., with veteran First Amendment litigator Paul Cambria stepping into Gelbard's former position. H. Louis Sirkin continues to represent John Stagliano, Inc., the company that actually released the movies and trailer in question—Evil Angel Productions, Inc. doesn't really exist; "Evil Angel Productions" was simply the business name (dba) of John Stagliano, Inc.; Evil Angel Productions was simply a company name formed in 2002 and which never did any business of any sort, and when it came time to renew the corporate name, no fees were then paid and the corporation was dissolved. But according to the defense, it has had no real legal existence since the early '00s, and may at some point be dropped from the case entirely.

At any rate, after the attorneys introduced themselves (and Buzzelli was sent to the back of the room), the 46 potential jurors were brought in, having been whittled down from an original panel of about 120. The missing 74 were panelists who had been removed from the panel for "cause," meaning they either knew one or more the parties or attorneys involved, or their other answers on the jury questionnaire they'd been required to fill out indicated some definable problem that prevented them from serving in an unbiased fashion for the trial.

All of the "challenges for cause" had been conducted Wednesday through Friday of last week and part of this morning behind closed doors, leading one journalist covering the trial to send a letter of complaint to the Chief Clerk of the court, protesting the press's lack of access to that part of the proceedings. (To date, Judge Leon has yet to explain why he felt it was necessary to keep the "cause" challenge portion secret.)

So what occurred this afternoon was the final selection process, with each side getting a certain number of "peremptory challenges," which allow them to remove panel members simply because they don't want those people on the jury. The number of peremptory challenges allowed varies with each trial; in this case, the prosecution got seven while the defense got 12 for the main jury, and the sides got one peremptory challenge each to use against the two alternate jurors, who would serve if one or more members of the main jury is unable to continue with the trial of the case.

"No juror appeared to express any recognition of Joey Silvera or Aurora Snow," Obenberger observed as the jury selection proceeded. "Considering the relative fame of each—especially Joey's, whose fame spans two generations—this is a bad sign that points in the direction of a jury that does not know popular mainstream porn."

After the jury was seated and before the judge dismissed the jury for the day, he warned them that they are not to discuss the case or anything relating to it with friends, family members or even their fellow jurors, and ordered them to avoid reading newspaper or internet articles about the case, or watching any TV coverage of it. He then ordered them to report back to the jury room at 10:15 tomorrow morning, in expectation that the trial would begin with opening statements by the attorneys to commence at 10:45.

After the jurors left the room, Judge Leon questioned the attorneys as to how long their opening statements to the jury would take. Satterfield estimated that hers would take just five or 10 minutes, but when Cambria replied that he anticipated that his would take 10 to 20 minutes, the judge seemed surprised.

"That long?" the judge queried.

"Well, maybe 10 to 15, Your Honor," Cambria back-pedaled.

Gelbard and Sirkin claimed 10 minutes apiece, which seemed to suit Judge Leon well, since he was unsure how long his duties the following morning would take. (The judge had been tapped to preside over a ceremony inducting a group of immigrants who had passed their citizenship test into full U.S. citizenship.)

More importantly, however, the judge noted that he would soon be delivering a formal opinion on the question of how much of the two charged full-length movies he would allow to be played in the courtroom. The issue has been a bone of contention at least since a status hearing back in May, when the Justice Department made its first motion not to play the full movies for the jury, electing instead to play one selected scene from each movie, as well as the full trailer to Fetish Fanatic 5, and send the DVDs of the movies with the jury as they began deliberations, with instructions to watch the full movies in the privacy of the jury room. The defense had filed a formal objection to that practice, asking that the full movies be played, or in the alternative, to allow the defense to play whatever portions of the movies were not played by the prosecution. It is on that motion that Judge Leon said he would rule soon, but he was adamant that he would not allow the full movies—all 330 minutes of them—to be played by either side in the courtroom.

"I'm not going to permit that," he stated flatly.

But when Sirkin objected to that plan, Judge Leon assured him, "You'll get a fuller description [of the ruling] and the rationale behind it" once he had finalized his thoughts on the subject.

Sirkin, however, worried aloud that in his opening statement, he might refer to portions of the movies that the jury would not see during the trial, which led Judge Leon to caution the attorneys not to make promises during their statements that they could not necessarily fulfill during the trial itself.

The judge's proposal would seem to conflict with the Supreme Court's dictum in Miller v. California that in order for a work to be found obscene, it must be considered "as a whole," and while the practice of playing some of the movie in the courtroom and allowing the jury to view the rest of it later may technically fulfill that requirement, the practice has not yet been tested in court.

Satterfield then asked whether the judge, in his opening remarks to the jury, would be instructing them on the requirements of the three-prong "Miller test," but the judge demurred.

"I wouldn't give them substantive legal instructions before they've heard the evidence," he replied.

After a final warning that he never let attorneys approach the jurors too closely when giving their opening statements, Judge Leon adjourned court for the day—leaving everyone to imagine what fireworks might be in store for tomorrow.